Nash v. Rawlett

41 App. D.C. 456, 1914 U.S. App. LEXIS 2199

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 2, 1914
• Docket: No. 2596
• Status: Published

Opinion

Mr., Chief Justice Shepard

delivered the opinion of the Court:

The court did not err in permitting the plaintiff to produce in evidence the quitclaim deeds from Shea’s heirs at law to Green, and from Green to her.' They did not vest a title in the plaintiff to the lot, and so the court charged the jury; but they passed to her whatever possessory right Shea may have had as against a real1 trespasser. Chesapeake Beach R. Co. v. Washington, P. & C. R. Co. 199 U. S. 247, 249, 252, 50 L. ed. 175, 177, 178, 26 Sup. Ct. Rep. 25.

2. There was no error committed in excluding the paper authorizing Young to move the house to lot 4 in square 611. He actually moved it on to lot 5, with the knowledge and acquiescence of Shea, who leased him square 611 and collected rent therefor as shown in his written receipts. Rowlett v. Nash, 38 App. D. C. 598, 605.

3. There was no error in excluding the official “permit” to defendant to erect a fence on lot 5, or the survey made by the district surveyor. Permits for the erection of structures on a lot in the city are required by the huilding regulations in the public interest. Neither they, nor a survey made at anyone’s request, can confer a right of possession or license a trespass.

4. The' judgment against Mayse, execution and sale thereunder, and the marshal’s deed conveying the interest of Mayse to defendant, were rightly excluded. No attempt was made to show that Mayse had title to, or any interest whatever in, the lot in controversy. If Shea had been in peaceable possession of the lot, in person or by tenant, the presumption of law is that his possession was lawful, and he -was entitled to recover possession from a mere trespasser without further proof of title. The rule is founded in the policy of protecting the public peace against violence and disorder. Bradshaw v. Ashley, 14 App. D. C. 485, 504; s. c. 180 U. S. 59, 45 L. ed. 423, 21 Sup. Ct. Rep. 297; Chesapeake Beach R. Co. v. Washington, P. & C. R. Co. 23 App. D. C. 587, 595; s. c. 199 U. S. 247, 50 L. ed. 175, 26 Sup. Ct. Rep. 25. If such a deed were admissible, “a party might'wrongfully intrude and enter upon the possession of another, as a pure intruder, and yet make a claim of title under a deed which manifestly conveyed none, and which the party could not in good faith have supposed conveyed title, and then call upon plaintiff for foil proof of title in fee. Such entry could not be excused by any subterfuge of that kind.” Bradshaw v. Ashley, 180 U. S. 59, 65, 45 L. ed. 423, 430, 21 Sup. Ct. Rep. 297. Clearly as to the part of the lot actually occupied by the tenant’s house, possession of which was acquired by surrender of the tenant, the possessory title of Sbea and bis successors conld not be defeated by a title acquired from one who had no connection witb the title. Rowlett v. Nash, 38 App. D. C. 598, 605. If, on the other band, the tenant was not in possession of tbe remainder of the lot, defendant’s possession was not acquired by trespass, as charged by tbe court, and he was entitled to a verdict for that part of the lot, because plaintiff had not proved title. The excluded deed added nothing to that right.

5. The instruction given on behalf of plaintiff was in accord with the opinion of the court on the former appeal and the principles hereinbefore declared. The special instructions given on behalf of the defendant clearly stated the right of the defendant to recover possession of such part of the premises as he may not have acquired from the tenant, Young. The first refused instruction is disposed of by what has been said in discussing the rejection of the permit to Young to remove the house. The second refused instruction was embodied in the charge, which left it to the determination of the jury whether the tenant, Young, was in actual possession and making use of the whole of lot 5 at the time of the entry by defendant.

We perceive no error in the trial, and tbe judgment is affirmed, witb costs. Affirmed.